By Pexcel John Bacon
CHANGING the 16-vote threshold for conviction in the impeachment trial could create a dangerous precedent and raise questions about how the constitutional requirement should apply when some senator-judges cannot participate, political analysts said.
“They should just stick with what is legal or constitutional,” Eric Daniel C. de Torres, a political science professor at the University of the East, said in a Facebook Messenger chat.
He said the impeachment court should keep its rules within the constitutional framework rather than adjust them because of circumstances that arise during the trial.
“This is very dangerous as it would set forth a dangerous precedent,” he said. “Rules should and must always be within the framework of the Constitution.”
Under the 1987 Constitution, an impeached official may be convicted only with the concurrence of at least two-thirds of all members of the Senate.
With the Senate composed of 24 members, the generally accepted conviction threshold is 16 votes.
Questions have been raised over whether the same denominator should apply when some senator-judges are unable to participate in the proceedings.
Hansley A. Juliano, a political science instructor at the Ateneo de Manila University, said the prevailing view among legal experts is that the Senate impeachment court could not change the threshold, particularly while the trial is underway.
The Constitution does not specifically address circumstances in which senator-judges are unable to participate, Mr. Juliano said. He cautioned, however, that using such circumstances to justify a different threshold could open the door to similar arguments in future impeachment trials.
“Circumstances are not accounted for in the Constitution,” Mr. Juliano said via Messenger.
He said revisiting the requirement could open a “can of worms” over what other situations might justify changing the threshold and what effect such changes could have on future cases.
Any attempt to reinterpret the voting requirement would require the Senate and the Supreme Court to share an understanding of the constitutional provision’s intent, he said.
“Both the Senate and Supreme Court need to be of one mind on the spirit of the law should reinterpretations be invoked,” Mr. Juliano said.
He said involving the Supreme Court might be the only recourse, although doing so also carries risks.
The issue could also have political consequences regardless of whether the threshold is changed, Mr. Juliano said.
If the threshold remains at 16 votes and the prosecution secures the required number, the result would benefit the prosecution. If it fails to reach 16, however, the Duterte camp could portray its allies as “principled” for refusing to be swayed by the numbers, he said.
Such a narrative may not reflect the political circumstances surrounding the senator-judges who are absent from the impeachment court, Mr. Juliano said.
House of Representatives private prosecutor Benjamin “Jay” S. Tolosa, Jr. earlier said it might be reasonable to revisit the position that the impeachment court itself should rule on the threshold because of the frequent absences of some senator-judges.
Mr. Tolosa said any action on the matter would remain within the discretion of the impeachment court.
Mr. Juliano said the absence of a specific constitutional provision covering such circumstances does not necessarily justify changing the threshold. He warned that doing so could establish a framework that future impeachment courts might invoke.
He also said an adverse Supreme Court ruling could face political resistance, with the Duterte camp unlikely to accept a decision unfavorable to it.
Mr. de Torres said the impeachment court should avoid recalculating the threshold based on circumstances during the proceedings to prevent perceptions that its decision was driven by political considerations rather than the evidence and arguments presented at trial.
“It is not an issue of fairness but being able to comply within what is set forth by the law and or that is constitutional,” he said.